Exhibit 10.2
AGREEMENT
AGREEMENT dated as of May , 1998, between First Chesapeake Financial
Corporation, a Virginia corporation ("First Chesapeake"); and Xxxxxx X. Xxxxxxx
("Xxxxxxx").
RECITALS
First Chesapeake is a corporation organized under the laws of the
Commonwealth of Virginia;
First Chesapeake wishes to form a wholly-owned subsidiary to
engage in the mortgage origination and brokerage business;
The parties wish for Xxxxxxx and certain members of Xxxxxxx'x
management team to operate the new subsidiary as set forth below; and
First Chesapeake wishes to transfer to Xxxxxxx and certain members of
Xxxxxxx'x management team certain authorized shares of First Chesapeake's
capital stock on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the covenants and agreements herein
set forth and in reliance on the representations and warranties contained
herein, the parties agree as follows:
SECTION 1. FORMATION OF MORTGAGE BROKERAGE SUBSIDIARY
1.1 Formation. First Chesapeake agrees to form a wholly-owned
subsidiary prior to the Closing Date to engage in the wholesale and retail
mortgage origination and brokerage business (the "Subsidiary"). The Subsidiary
will be incorporated under the laws of the Commonwealth of Virginia and will
issue to First Chesapeake 100 shares of capital stock, no par value.
1.2 Board of Directors. The initial Board of Directors of the
Subsidiary shall consist of the same persons who are members of the Board of
Directors of First Chesapeake on the Closing Date. On the Closing Date, the
current members of the Board of Directors of First Chesapeake shall cause
Xxxxxxx to be elected as a member of the Board of Directors of First Chesapeake
to fill one of the vacancies on such Board. Pursuant to the Bylaws of First
Chesapeake, Xxxxxxx shall serve as a Director until the next annual meeting of
First Chesapeake at which time he shall stand for re-election with the other
Directors.
1.3 Officers. Xxxxxxx shall serve as President of the Subsidiary and
shall recommend to the Subsidiary's Board of Directors a slate of suitable
candidates to serve as the other officers of the Subsidiary.
1.4 Compensation of Officers and Management Team. The officers of the
Subsidiary shall be compensated pursuant to a compensation schedule agreeable to
the parties. Other employees of Subsidiary shall be compensated as directed by
the Board of Directors of the Subsidiary.
SECTION 2. ISSUANCE OF STOCK OF FIRST CHESAPEAKE
2.1 Issuance of First Chesapeake Stock.
----------------------------------
(a) On the Closing Date, First Chesapeake shall issue to
Xxxxxxx 275,000 shares of First Chesapeake common stock. On the date two
calendar years after the Closing Date, the Board of First Chesapeake shall
determine in good faith whether Subsidiary has met the goals set forth in the
Business Plan of Subsidiary. If Subsidiary has failed to meet or exceed the
goals set forth in the Business Plan of Subsidiary, the parties agree that any
shares issued to Xxxxxxx pursuant to this Agreement shall be returned to, or
canceled by, First Chesapeake and shall be deemed to have been forfeited to
First Chesapeake for no monetary consideration.
(b) On the date two calendar years after the Closing Date,
the Board of First Chesapeake shall determine in good faith whether Subsidiary
has met the goals set forth in the Business Plan of Subsidiary. If Subsidiary
has met or exceeded the goals set forth in such Business Plan, First Chesapeake
shall issue to Xxxxxxx and members of Subsidiary's management team, no later
than thirty (30) days after such two year anniversary date, an additional number
of shares of First Chesapeake common stock equal to five percent (5%) of First
Chesapeake's issued and outstanding common stock as of the two year anniversary
date of the Closing Date. Such issued stock shall be distributed to Xxxxxxx and
Subsidiary's management team as directed by Xxxxxxx, with the concurrence of
First Chesapeake's Board of Directors.
(c) If First Chesapeake, within four (4) years after the
Closing Date, issues additional shares of authorized common stock for the
purpose of acquiring an interest in a company engaged in the same line of
business as Subsidiary (a "Qualifying Issuance"), First Chesapeake shall issue
to each Eligible Employee that number of unregistered shares of First Chesapeake
common stock such that the Eligible Employee's proportional amount of First
Chesapeake's issued and outstanding common stock immediately prior to the
issuance is equal to the Eligible Employee's proportional amount immediately
after such issuance. For the purposes of this section 2.1(c), "Eligible
Employee" shall mean an employee of Subsidiary who is employed by Subsidiary at
the time of a Qualifying Issuance and who has received shares of First
Chesapeake common stock pursuant to this Agreement prior to the Qualifying
Issuance.
(d) For purposes of this section 2.1, the "Business Plan"
shall mean the Business Plan attached to this Agreement as Exhibit B and
approved by the Board of Directors of First Chesapeake prior to the Closing
Date.
(e) No shares shall be issued pursuant to this Agreement to
Xxxxxxx or any other individual unless the individual has executed the
Employment and Noncompetition Agreement described in Section 5.1 of this
Agreement.
2.2 Effect of Termination of Employment. If the employment of Xxxxxxx
or any employee of First Chesapeake who receives shares of First Chesapeake
stock pursuant to this Agreement (collectively "Employee Shareholder") is
terminated "for cause" within two (2) years after any issuance of stock pursuant
to this Agreement, the parties agree that any shares issued to the terminated
Employee Shareholder within such two (2) year period shall be returned to, or
canceled by, First Chesapeake and shall be deemed to have been forfeited to
First Chesapeake for no monetary consideration. For purposes of this Section
2.3, "for cause" shall be defined in accordance with the Employment and
Noncompetition Agreement described in Section 5.1 of this Agreement.
2
2.3 Restrictions on Transfer. No shares issued to Xxxxxxx or any
employee of Subsidiary pursuant to this Agreement shall be sold, transferred,
assigned, pledged, encumbered, or otherwise alienated or hypothicated, for two
(2) years after issuance. The parties agree that any individual receiving shares
of stock pursuant to this Agreement will enter into a mutually acceptable Stock
Transfer Restriction Agreement reflecting the restrictions contained in this
Agreement. The parties agree that the stock certificates evidencing shares
issued pursuant to this Agreement shall bear a legend reflecting such
restrictions.
SECTION 3. CAPITAL CONTRIBUTION
3.1 Capital Contribution. On the Closing Date, in consideration of
the services to be provided by Xxxxxxx and the other officers of Subsidiary,
First Chesapeake will contribute not less than Two Hundred Fifty Thousand and
no/100 Dollars ($250,000.00) to Subsidiary, which will be used for the initial
capitalization and operation of Subsidiary. First Chesapeake agrees to
contribute such additional capital to Subsidiary as may be reasonable and
necessary, as determined by the Board of First Chesapeake in its sole
discretion.
SECTION 4. WAREHOUSE FACILITY
4.1 Warehouse Facility. Xxxxxxx and First Chesapeake will use their
good faith, commercially reasonable efforts to obtain a warehouse facility for
Subsidiary after the Closing Date.
SECTION 5. EMPLOYMENT AND NONCOMPETITION AGREEMENTS
5.1 At the Closing, Xxxxxxx and each employee of Subsidiary shall
execute Employment and Noncompetition Agreements with Subsidiary and First
Chesapeake in the form attached hereto as Exhibit A.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE PARTIES
6.1 First Chesapeake represents and warrants that:
(a) First Chesapeake is a corporation duly organized, validly
existing and in good standing under the laws of Commonwealth of Virginia, and
has the corporate power to own its property and conduct its business in the
manner in which such business is now being conducted. On the Closing Date,
Subsidiary will be a corporation duly organized, validly existing and in good
standing under the laws of Commonwealth of Virginia, and will have the corporate
power to own its property and conduct its business in the manner in which such
business is now contemplated.
(b) On the Closing Date, the execution and delivery of this
Agreement and the performance of the transactions contemplated hereby have been
duly authorized and approved by all necessary corporate action of First
Chesapeake unless otherwise provided in this Agreement. First Chesapeake has
full corporate power to enter into and perform this Agreement and the
transactions contemplated hereby, and this Agreement constitutes a valid and
binding agreement of First Chesapeake enforceable in accordance with its terms.
(c) The execution, delivery and performance of this Agreement
and the consummation of the transactions herein contemplated do not and will not
conflict with, or result in a breach of any term or provision of, or constitute
a default under, or result in the creation of any lien or encumbrance upon the
property or assets of First Chesapeake pursuant to the Articles of Incorporation
or Bylaws of First Chesapeake or any agreement, indenture, mortgage, deed of
trust or other instrument to which First Chesapeake is a party or by which it is
bound or to which its properties are subject, or any law, rule, regulation,
judgment, order or decree. All consents by third parties that are required to
prevent or eliminate every such conflict, breach, default, lien and encumbrance
shall have been validly obtained before the Closing and at the Closing shall be
in full force and effect and valid and sufficient for such purpose.
3
6.2 Xxxxxxx represents and warrants that:
(a) The execution, delivery and performance of this Agreement
and the consummation of the transactions herein contemplated do not and will not
conflict with, or result in a breach of any term or provision of, or constitute
a default under any agreement (employment, consulting or otherwise), indenture,
mortgage, deed of trust or other instrument to which Xxxxxxx and/or any
potential employees of Subsidiary are a party or by which any of them are bound
or to which their properties are subject, or any law, rule, regulation,
judgment, order or decree. All consents by third parties that are required to
prevent or eliminate every such conflict, breach, default, lien and encumbrance
shall have been validly obtained before the Closing and at the Closing shall be
in full force and effect and valid and sufficient for such purpose.
SECTION 7. COVENANTS AND FURTHER AGREEMENTS
7.1. Brokers and Consultants. The parties represent and warrant to
each other that the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not give rise to any
valid claim for a finder's fee, brokerage commission, or other like payment.
7.2. Reliance Upon and Survival of Representations and Warranties.
Notwithstanding any investigation at any time conducted by any of the parties
hereto, each of the parties hereto shall be entitled to rely on the
representations and warranties of the other parties set forth herein or in any
schedule, exhibit, or other document delivered pursuant hereto. The
representations, warranties, covenants, and agreements of the parties shall be
true and accurate as of, and shall survive for a period of one (1) year after
the Closing Date.
7.3. Further Assurances. The parties hereto agree to execute and
deliver or cause to be executed and delivered at the Closing or at other
reasonable times and places such additional instruments as another party hereto
may reasonably request for the purpose of carrying out this Agreement.
7.4. Indemnification.
----------------
(a) First Chesapeake covenants and agrees to indemnify, defend
and hold harmless Xxxxxxx from and against any loss, claim, liability,
obligation or expense (including reasonable attorneys' fees) (i) incurred or
sustained by Xxxxxxx on account of any misrepresentation or breach of any
warranty, covenant, or agreement of First Chesapeake contained in this Agreement
or made in connection herewith, or (ii) incurred or sustained on account of the
nonfulfillment by First Chesapeake of any of the conditions or covenants of this
Agreement as contemplated hereby. If any claim is asserted against Xxxxxxx for
which indemnification may be sought under the provisions of this Section 7.4,
Xxxxxxx shall promptly notify First Chesapeake of such claim and thereafter
shall permit First Chesapeake at its expense to participate in the negotiation
and settlement of any such claim and to join in the defense of any legal action
arising therefrom.
4
(b) Xxxxxxx covenants and agrees to indemnify, defend and hold
harmless First Chesapeake from and against any loss, claim, liability,
obligation or expense (including reasonable attorneys' fees) (i) incurred or
sustained on account of any misrepresentation or breach of any warranty,
covenant or agreement of Xxxxxxx and/or the Management Team contained in this
Agreement or made in connection herewith, or (ii) incurred or sustained on
account of the nonfulfillment by Xxxxxxx of any of the conditions or covenants
of this Agreement as contemplated hereby. If any claim is asserted against First
Chesapeake for which indemnification may be sought under the provisions of this
Section 7.4, First Chesapeake shall promptly notify Xxxxxxx of such claim and
thereafter shall permit Xxxxxxx at his expense to participate in the negotiation
and settlement of any such claim and to join in the defense of any legal action
arising therefrom.
7.5. Expenses. Each party shall pay its own expenses and costs,
including without limitation, counsel fees and transfer taxes incurred in
connection with the consummation of this Agreement and the transactions
contemplated hereby. However, First Chesapeake shall pay all fees and costs
associated with forming Subsidiary.
SECTION 8. CONDITIONS TO OBLIGATION OF XXXXXXX
The obligations of Xxxxxxx at the Closing to consummate the
transactions herein contemplated are subject to the fulfillment at or prior to
the Closing Date of each of the following conditions:
8.1. Truth of Representations and Warranties. The representations and
warranties of First Chesapeake contained in this Agreement and in any exhibit or
other document delivered pursuant hereto shall be true and correct on and as of
the Closing Date with the same effect as though such representations and
warranties had been made on and as of such date, and Xxxxxxx shall have received
a certificate to this effect dated the Closing Date and signed by First
Chesapeake.
8.2. Performance of Agreements. Each agreement of First Chesapeake to
be performed on or before the Closing Date pursuant to the terms hereof or as
contemplated herein shall have been duly performed, and Xxxxxxx shall have
received a certificate to this effect dated the Closing Date and signed by First
Chesapeake.
8.3 Formation of Subsidiary. First Chesapeake shall have formed the
Subsidiary reasonably satisfactory to Xxxxxxx.
SECTION 9. CONDITIONS TO THE OBLIGATIONS OF FIRST CHESAPEAKE.
The obligations of First Chesapeake to consummate the transactions
herein contemplated are subject to the satisfaction on or before the Closing
Date of each of the following conditions:
9.1. Truth of Representations and Warranties. The representations and
warranties of Xxxxxxx contained in this Agreement and in any exhibit or other
document delivered pursuant hereto shall be true and correct on and as of the
Closing Date with the same effect as though such representations and warranties
had been made on and as of such date, and First Chesapeake shall have received
certificates to this effect dated the Closing Date and signed by Xxxxxxx.
5
9.2 Performance of Agreements. Each agreement of Xxxxxxx to be
performed on or before the Closing Date pursuant to the terms hereof or as
contemplated herein shall have been duly performed, and First Chesapeake shall
have received certificates to this effect dated the Closing Date and signed by
Xxxxxxx.
9.3 Approval of Transaction. The approval of the transactions set
forth in this Agreement by the Board of First Chesapeake.
SECTION 10. CLOSING
10.1 The closing (the "Closing") under this Agreement shall be held on
or before June 30, 1998 (the "Closing Date"), at such other place as the parties
may mutually agree.
SECTION 11. BENEFITS.
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their assigns and successors in interest.
SECTION 12. NOTICES.
Any notice or other communication required or permitted hereunder shall
be sufficiently given if sent by certified mail, postage prepaid, addressed as
follows:
To Xxxxxxx: 0000 Xxxxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
To First Chesapeake 00 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: President
Any such notice or communication shall be deemed to have been given as of the
date so mailed.
SECTION 13. ENTIRE AGREEMENT
The certificates and other documents to be furnished in connection
herewith are an integral part of this Agreement. All understandings and
agreements between the parties are merged into this Agreement which fully and
completely expresses their agreements and supersedes any prior agreement or
understanding relating to the subject matter, including the letter of intent
among the parties, and no party has made any representations or warranties,
express or implied, not herein expressly set forth. This Agreement shall not be
changed or terminated except by written amendment signed by the parties hereto.
SECTION 14. GOVERNING LAW
This Agreement and the agreements contemplated hereby shall be
construed in accordance with and governed by the laws of Commonwealth of
Virginia, without regard to its conflict of laws provisions.
SECTION 15. COUNTERPARTS
This Agreement may be executed in several counterparts, all of which
taken together shall constitute one instrument.
6
SECTION 16. SEVERABILITY
If any clause, provision or section of this Agreement shall be held
illegal or invalid by any court, the illegality or invalidity of such clause,
provision or section shall not affect the remainder of this Agreement which
shall be construed and enforced as if such illegal or invalid clause, provision
or section had not been contained in this Agreement. If any agreement or
obligation contained in this Agreement is held to be in violation of law, then
such agreement or obligation shall be deemed to be the agreement or obligation
of the respective party hereto only to the extent permitted by law.
SECTION 17. DESCRIPTIVE HEADINGS
The descriptive headings of the several sections of this Agreement are
inserted for convenience only and shall not be deemed to affect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their representative duly authorized officers, all as of the day and
year first above written.
FIRST CHESAPEAKE
FINANCIAL CORPORATION,
a Virginia corporation
By: -----------------------
Xxxxxxx X. Chakegian
President and Director
By: ------------------------
Xxxx Xxxxxxxxx
Chairman
XXXXXXX
----------------------------
Xxxxxx X. Xxxxxxx
7
EXHIBIT A
FORM OF EMPLOYMENT AGREEMENT
EXHIBIT B
APPROVED BUSINESS PLAN
EXHIBIT C
APPROVED COMPENSATION AND BONUS PLAN
8
